ML20095L041

Answer in Opposition to Suffolk County 840820 Motion Seeking Admission of late-filed Contention Re Recent Strike by Unions Representing Lilco Employees.Certificate of Svc Encl

ML20095L041
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/27/1984
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
OL-3, NUDOCS 8408300124
Download: ML20095L041 (27)

Text

kYm.~ ,:

LILCO,. August 27, 1984 s ...

UNITED STATES OF AMERICA NUCLEAR-REGULATORY COMMISSION Ugr ED

'Before the! Atomic Safety and Licensing BoJM dyg 29 P2:55

~

In the Matter of - )'

~

-. )

LONG' ISLAND LIGHTING COMPANY. ) Docket No. 50-322-OL-3 ,

').-(Emergency Planning Proceeding)

'(Shor'eham Nuclear-Power Station, )

~

Unit-1) .)

-TILCO'S ANSWER TO MOTION OF

.SUFFOLK COUNTY TO ADMIT NEW CONTENTION On' August 20, 1984, Suffolk County filed a. motion seeking admission of a late-filed contention.about the recent strike by unions representing LILCO employees (" Motion of Suffolk County to Admit New-Contention,." hereinafter " Motion"). For tS rea-

. sons detailed below, Suffolk County has failed to establish good cause for the untimely filing pursuant to 10 CFR $ 2.714.

In addition; Suffolk County's proposed contention r'epresents a thinly veiled attempt to reopen the record on issues that have already been litigated; as such, Suffolk County has failed to demonstrate that its proposed contention meets the appropriate standards for reopening. Accordingly, LILCO opposes the Mo-tion.

i-

^

b B409300124 840027 i PDR ADOCK 05000322 l Q PDR '

l

a .#,

r

~

y -

t

?

/

~I. Suffolk County Has Failed-to Make the Requisite j Showing for'a Late-Filed Contention y

As.Sufloik County has noted,.. Motion at 7-8, the admissi-

.bility of_ late-filed-contentions is' judged on the basis of a y balancing of-five factors. These factors, which are contained cin 10 CFR'l 2.714(a)(1), are.the following:

(i)z Good ~cause, if any, for failure to file on ,

j 1

' . time; R~ .

(ii) The.aGailability of other means whereby the petitioner's interest will be protected; j (iii) The extent to which the petitioner's par-  ;

ticipation.may reasonably be expected to assist.in. developing a sound record; i

-(iv) The extent to which the petitioner's inter- <

.est will be represented by existing par-ties; and , .~ .

(v) The-extent to which the petitioner's par- [

ticipation will broaden the issue or-delay ,,

the proceiding.

'f i ,

LILCO believes that then balance of these factors weighs heavilyagainstadmissionofNuffolkCounty'sproposedconten- l

' tion. In fact, only the factor that no other party will liti-

/ ,

gate this proposed contention is arguably in Suffolk County's

, . . ~

favor. <

e' y. A. Good cause for Untimeliness l First, Suffolk County argues that " good cause" exists for

- r' the ' fillig of its proposed contention at this time. Motion at

}

8-9. This good cause showing is premised on an assertion that

. the proposed contention arises from largely unspecified "cir-i

\ umstances unforeseen. prior to the LILCO strike," ,id. at 8. j c

V

, s '# . ,' i t yl

s. u _ . . . . . , _ . - . - - - , . . , . - _ _ . _ - . - - . . - . - - . . - - - - . . - - ,

f w

~

f" _ c . . . .

~ xy. '

s -

u' ; , ~

- . i l

i

'~These n allegedly unforeseen circumstances are: presumably the ac-tual' occurrence of a strike and the alleged.en masse resigna-- .

Ltion.of~LERO workers. In addition, Suffolk County justifies l eq Lits long delaytin filing =following these events by arguing that l the1 Board's sus-sponte decision to open issuestabout the of-facts'ofta. strike precluded it from filing its proposed conten- l

. tion in.aimore timely. manner. Id. at 8-9. .Suffolk County's  ;

clains are baseless..

A closer examin'a tion of Suffolk County's motion.and~at-tached. proposed. contention reveals that Suffolk County has not premised its late-filed contention on events that are alleged to have occurred, presumably without warning, on Jul'y 10, 1984.

.Rather, Suffolk County bases its thesis that LERO workers feel -

" resentment" on a serie's of' events that occurred s'gnificantly i ,

t  :

j before July 10. These events include-labor cutbacks ca'used by h LILCo'.s austerity program on March 6, 19841/ and bargaining *po-  ;

r i sitions taken during contract negotiations that were publicly i reported as much as one month before the commencement of the .!

f l- strike.. See the attached Affidavit of Robert X. Kelleher (hereinafter " Affidavit") 1 4 1/ Thus, Suffolk County could i.

L 1/ The Board will recall that suffolk County attached to its i written ~ testimony on Contentions 11 and 15 newspaper articles F .(dated March 8,111, and 16, 1984) about the effects of LILCO's i

!~ austerity measures on worker attitudes. See Attachment 4 to l Testimony of Arthur H. Purcell, et al., ff. Tr. 10,727.  :

l 2/ Mr. Kelleher has executed the affidavit in New York. The l logistics =of getting'the signed affidavit to Bethesda, however, l- Lforce us to file an unsigned copy with this pleading. The exe- ,

L cuted affidavit,-which says the same thing-as the' attached ver-L sion,.will be' filed promptly.

L i I

a; h

%A.._.._._...-_.m,_,_..-a...,_.--_m._,_,,-._.,.___,,-_;.,__-._.m,._-,,-,-...,-s _ . - , -

'c 't l

'~

m I

^ .,- y .,: -4. 1

• t i

2have filed-its proposed contention much' earlier.

i

~

, Indeed, the potential-occurrence of.a; strike could, and

-should,=havA been foreseen by Suffolk County from the'very out-set;of this proceeding. Suffolk County has long been aware

1. ^

that a majority of_LERO,;is composed of union employees. It is also general public knowledge that electric utilities, like other. industries,1bave~ commonly-been'the object of strikes by

their local unions". Thus, Suffolk County ha's-failed to estab-

~

lish that it'could not have presented its current concerns with' the requisite degree of specificity long ago.3/

Suffolk County's only real-attempt to establish that new

-evidence has prompted-its-proposed' contention is.its claim.that 2

there'have'been en masse resignations from LERO. Motion at 8.

This claim is unsupported in' fact.4/ There was no en masse

resignation of LERO workers either immediately prior to, dur-

~ ~

ing,'or after the strike. Affidavit 1'7. A total of 33 workers resigned from LERO during.the period from-just before

-the strike to the present time.5/ Affidavit 1 6. In fact, 3/ _ Cf. Duke Power Company (Catawba, Units 1 and 2),

-CLI-83-19, 17 NRC 1041 (1983) (for new contentions raised by licensing-related documents, good cause for the-filing does not

exist.when information which forms the' factual basis of the l

' contention was publicly available elsewhere previously.)

4/. For this reason, even if the contention were timely, it

.would lack basis on-this point.

_ S/ Of these 33 workers, 26 tendered formal, written resigna-tions.- The remaining 7 tendered oral resignations to immediate

superiors, but haveLnever tendered them in writing. Affidavit at 116.

o , ,

t

\

, , I- ,

since the end of the strike two union workers have volunteered to join LERO. Id. Thus, the sole piece of "new" evidence on which Suffolk County bases its showing of good cause is not ev-idence.at all and thus can not be relied on to establish good cause.

Even if one accepts that a significant, unforeseen event

. occurred.with the start of the strike, on July 10, Suffolk County was still inexcusably-tardy in filing its pending mo-tion. For two weeks, from July 10 to July 24, Suffolk County could have filed its current motion;s/ it did not. Following this Board's July 24 Memorandum and Order, Suffolk County claims to have. interpreted that Order as including the issues-raised by its pending motion and then to have relied on that interpretation until August 8 when the Board ruled that the is-sues of the long-term effects of the strike were not covered by its three questions. The plain language of the three questions-posed in the Board's July 24 Order should'have indicated to Suffolk County that-its earlier articulated concerns had not s/ At the hearing on' Thursday, July 19, 1984, counsel for Suffolk County stated that there was pertinent information in the record that 1200 LERO personnel had resigned (Tr. 13,843),

that this was a serious' safety issue (id.), that he had been ,

reading all the press clippings about the strike (id.), and j that there was an issue about "even if you had people rejoin '

LERO after the strike is over, assuming it does end, what is the quality of that participation given the bitterness and the situation that has arisen" (Tr. 13,843-44). Apparently the County waited a month after that to submit its proposed strike contention because it hoped the Board would take up the issue on its own (see Tr. 13,844). But that is no justification at I all, j l

j

N . .

_6 been' accepted by the Board for litigation. See Statement of Judge Laurenson at the August 8,.1984 Conference of Counsel, Tr. 14,005-66. Suffolk County's tardiness in filing its motion should not be' excused based solely on Suffolk County's own mis-interpretation of the Board's Order. Cf.. Gulf States Utilities Co.-(River Bend. Station, Units 1~and 2)ALAB-444,

, 6 NRC.760, 796-98 (1977); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642,.645 (1977) (tardiness of po-tential intervenor is not excused by claim that intervenor was lulled by the, intervention of another which later withdrew).

^

Finally, even.after the Board's clarification of August 8, Suffolk County took'nearly.two more' weeks -- 12 days -- to file its Motion. In total, forty days passed between the occurrence of the " unforeseen circumstances" on which Suffolk County bases its, showing of good cause and the filing of it's pending motion.

~

There can be no question.that Suffolk County has failed to file its motion in a timely manner and to establish good cause.

B. Other Means for Protecting the County's Interests Second, Suffolk County argues that no other means are l available for protecting its interests. Motion at 10. In the area of emergency planning, this argument-is absurd. This sec-ond factor can never work in the County's favor, because the County always has the option of doing what other counties and states do, which'is to participate in emergency planning. l

' Laying that fact aside, there are still other means for

protecting the County's' alleged interest. First, as is

described more fully below, Suffolk County has already been allowed to raise and explain the issues it seeks to raise in its Motion. Second,'the graded FEMA exercise and the exercises thereafter will provide a continuing means of determining whether LERO is a viable, functioning organization. If suffi-cient LERO workers are~not available to implement the emergency plan, then that deficiency will be detected.

C. Development of a Sound Record

1. Failure to Raise a Significant Issue Third, Suffolk County asserts that its participation will assist in the development of a sound record. Motion at 10-11.

In support, Suffolk County states.that it has retained four ex-pert witnesses and has had discussions -with other experts. Id.

l l However, as another Licensing' Board in this proceeding has al-ready noted, "the fact that the County has engaged experts is not wholly ' dispositive of the issue of whether Intervenors can assist in developing a sound record." Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-84-30, slip op.

at 24 (August 13, 1984). That Board reasoned that "the extent to which the petitioner's participation may reasonably be ex-pected to assist in developing a sound record is only mean-ingful when the proposed participation is on a significant, triable issue." Id.

Suffolk County has failed to present a significant, triable issue. The County's motion assumes that the resentment of LILCO's union employees will prevent them from carrying out

+ .

.m. Os'

~

_ztheir voluntary LERO duties.-' To theLextent that-this assertion ,

is notlmerely an unsupported exercise in speculation, .it is simply.the; latest version of:an often-repeated County. theme:

namely, that LERO workers-cannot.be counted on to perform.emer-3

-gency duties. Suffolk' County has advanced this argument during

.the litigation of the role conflict and.the training conten-

~

tions.7/ Further discussion of this same theme will not' add to J

7/. .Suffolk County:cannot seriously expect this Board to find that:New York's Taylor Law,.particularly N.Y. Civil Service Law

. .l 210 (McKinney 1983), which forbids public employees to

strike, marks the difference between a viable emergency organi-zation and a nonviable

one. As the 1981 nationwide strike by Lthe Professional Air-Traffic Controllers-Organization reminded us, a' statute forbidding public employees to strike does not ensure that they will not-strike.. See B. Meltzer &

C.. Sunstein,-Public Employee Strikes, Executive Discretion, and

_ the Air Trafficf.Cor2 rollers, 50 U.-Chi. L. Rev. 731-(Spring i'

1983). In particular, strikes of New York public employees have occurred notwithstanding the Taylor Law.' See Kiernan v.

Lindsay,.334 F. Supp. 588- (S.D.N.Y. 1971) (alleged six-day strike-by New York City policemen in January 1971). After 15 months.of. experience under the Taylor Law, one-commentator wrote the following:

The Taylor law has not prevented-l strikes. In this regard it does not differ

.from other efforts to inhibit concerted ac-tion by legislative degree.

T. Kheel, The Taylor Law: A Critical Examination of its Vir-

tues and Defects, 20 Syracuse L. Rev. 181 (1969); see also-id.

1 -184, 185-89. And there is no guarantee that the Taylor Law will continue to exist, particularly inasmuch as labor can be

expected.to' work for the abolition or weakening of the law.

L See the. article in the New York Times, November 16, 1980, at

!= =40,; quoting the president of Local 100 of the Transport Workers Union as saying "We in labor have got to get together and take

' -the' vicious teeth out of the Taylor Law." -  ;

The County's theory that a strike destroys the "dedica-t . tion" of an emergency force and affects employee " attitudes" is 4

(footnote continued) i' _

l

, . ., , _ ,.,-.._u-_-._.-.A. .L, ,__.._ _. ___.__m _ ,_, - ~. .,..__,.,_,.-m._ ,,i,....-_.,,,,..,,J

- ^

.L .

- ~

.the development of~a soundirecord, h

'2. Failure to State its Evidence with Specificity

.Moreover, Suffolk. County has not met the standard for-this

, test set 1forth by this Board in its Order Ruling ~on Suffolk County Motion for Leave to File New Contentions Concerning the

-LILCO Offsite Emergency Preparedness Training Program (March 19, 1984) at-11:

.This element, the extent to which the County's participation on these issues may J be expected to assist in developing a sound record, weighs against the County. We are i- aware of the County's vigorous and exten-sive performance in this proceeding to date, and we do not doubt that it will con-tinue in this manner, . sponsoring witnesses

. and cross-examining. witnesses offered by-other parties. However,-for admission-of

' late-filed contentions a substantially.

greater showing than' mere past performance is~ required. The County supplemented the

, showing it_had made on this factor in its original Motion _where, in its Reply, it (footnote continued) at'best-speculative. The Board might.just as well speculate about whether the attitudes of public employees are hurt by a law that prohibits them from striking. For example, the Kheel article cited above says this about a-particular strike by 50,000 teachers shortly after the Taylor Act was enacted:

The event left wounds of~ill will between the union,Jthe Board of Education, the Mayor and groupsEof irate parents. These wounds are not easily healed, and the atmo-sphere of distrust.and hostility undoubted-ly contributed'to the lengthy conflict that ,

closed the schools again this fall.  ;

Kheel, supra, at 186. The article makes clear that the Taylor Law'itself, not just the strike, contributed to this-distrust and hostility.

, included some additional description of its intentions in. litigating these issues. The County provided the names of two expert witnesses, a noninclusive list of those whom it intends to' call in this regard, but its description of the evidence it.would' provide was more or_less a reiteration of the contentions themselves. . We require that parties seeking the admission of late-

-filed contentions provide more' specific in-formation:en.the contribution they intend to-make. Specific showing could include types of' evidence to be offered, lists'of propos'ed witnesses and the substance of testimony the proponent.will adduce from them. See Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1),

ALAB-783, 18 NRC 387, 399-400 (1983).

In the. single paragraph devoted to this factor in its Motion,

.Suffolk County again presents a noninclusive-list of witnesses, and its description'of its' evidence is limited to the single.

, statement'that it would submit. testimony by these experts on

'"the. implications of the LILCO str'ike on LILCO's ability to.im-plement its Plan as set forth in this Motion and in the' pro-posed contention" (Motion at 10-11). The other discussion of what the County hopes to prove (chiefly at Motion 2-4) amounts to little more than a reiteration of the contention itself.

D. County's Interests Represented by Other Parties Fourth, Suffolk County argues that the County's interest in the proposed contention will not be adequately represented by other parties since no party has presented a similar conten-l tion. Motion at 11. LILCO cannot disagree with this asser-tion.8/

8/ This fourth factor, however, is of little or no importance here. The five factors of 5 2.714(a)(1) are for judging peti-(footnote continued)

. E. Broadening of the Issues and Delay of the Proceedings Finally, Suffolk County argues that the proposed conten-tion would not unduly broaden the issues relating to the LILCO strike or unduly delay the proceedings. Motion at 12. No one familiar with_this croceeding can possibly believe this.

1. Broadening the Issues Whil'e Suffolk County concedes that its' proposed contention

'"would broaden somewhat the inquiry deemed.necessary by the Board," it contends that this broadening is minimized because-the proposed contention is " specific and narrowly focused."

Id. Even a curs ~ory review of the proposed contention indicates that these assertions are untrue.

Read even in its narrowest, most favorable light, the pro -

posed contention raises a myriad of issues, including whether LERO can be "re-created" (assuming that it needs to be); wheth-er that."re-created" LERO would be the same organization as the one presented in the LILCO Transition Plan, and if not what the effects of any differences are on each and every part of the (footnote continued) tions to intervene, where a failure to raise a litigable con-tention means that the petitioner is excluded from the proceed-ing altogether. -Where, as here, a petitioner is already a party and the only question is whether he may raise a new issue, it is always the case that his " interest" (narrowly de-fined) cannot be protected by any other party: if the conten-tion is not admitted, no one can support it. In short, the fourth factor has little or no meaning, and should be given

-little or no weight, in a situation such as this.

,, g, , , ___

, Plan; whether the strike has affected LERO volunteers in a man-ner in which they would not " dedicate themselves" to achieving an adequate level of preparedness; and whether the "re-created" LERO could or would respond to a radiological emergency in ac-cord with the LILCO Transition Plan. Thus, rather than being narrowly 'ocused, f the proposed contention would' reopen virtu-ally every area of the emergency planning proceeding based solely on a hypothetical assertion about the attitude of LERO workers. Accordingly, the proposed contention would unreasonably broaden the scope of this proceeding.9/

2. Delay As for delay,.any new contention admitted at this time will definitionally delay this proceeding, whose record will otherwise close-this week. This point was.made recently when i

I the Brenner Board rejected a new contention proposed by Suffolk County on financial qualifications:

Intervenors cannot seriously expect this Board to believe that admission of this totally new contention "is not likely to have a material impact on the length of these proceedings." Intervenors' Memoran-dum at 32. Hearings before this Board are scheduled to commence on September 5, only two months after Intervenors filed this contention. The Miller Board is even 9/ It is true that the existence or not of the "en masse" resignations should be relatively easy to determine. But the

" reliability" and " dedication" of the work force," raised in item 3 of the contention, are subjects broad almost beyond be-lief, as is the issue (item 2) whether LERO "would be the same." Finally, the County has included a catchall contention (item 4) apparently designed to allow the County to litigate just about anything it wants.

f t

L . .

4

. further along procedurally. The hearings before that Board commenced.within a month of the filing of the contention and have a} ready, except possibly for one sub-issue, been completed. In. order to hear this con-tention, we would have to authorize a new round.of discovery. '.New testimony would have to be prepared and filed, in advance of-the. hearing, so as to address this new issue. Under these conditions it is impos-sible to see how the expected length of the proceedings could not be substantially in-creased.

Long-Island Lighting Co.~(Shoreham Nuclear Power Station, Unit 1), LPB-84-30, slip op. at'216 (Aug. 13, 1984).

Suffolk County argues that litigation will take "no more than a few days of hearing time" (Motion at 12), and therefore

~

the proceeding will not be delayed.to any significant degree.

But the actual. hearing time is almost beside the point. There are in add'ition the matters of discovery, written testimony, and.the oft-alleged inability of the Countysto cope with brisk schedules. The County's past insistence on numerous deposi-tions, its frequent and comprehensive document requests (such-as the one of August 1,.1983, concerning the strike issue), its insistence on written rather than oral testimony, and its many requests for additional time are well-known. We need not spec-ulate about this; the County has already discussed its need for time to address the strike issue in Suffolk County's Motion for Reconsideration of Board's July 24 Order Regarding Schedule for Hearing and Prohibiting Written Testimony on the Strike Issues, dated August 3, 1984, in which the County relied on an Indian Point decision saying that hearing testimony on a new issue

q I

entails a delay "on the order of months.'" The County has also complained recently_about the demands that will be placed on it by the schedule for proposed. findings. Suffolk County Motion for Reconsideration of Memorandum and Order Establishing Format and Schedule of Proposed Findings of Fact and Conclusions of Law (Aug. 6, 1984). It is simply not credible, given all this, that litigation of an additional issue can be-quickly-or easily accomplished.'

obviously, then, the proposed. contention, if admitted, would create large delays. At a minimum, discovery would need to be conducted and cases prepared on these issues. Suffolk-County may again. assert a need for wr'itten submissions, see Suffolk County's Motion for Reconsideration of Board's July 24 Order Regarding Schedule for Hearing and Prohibiting Written Testimony on the Strike Issues (August 3, 1984); which would further delay the start of the. hearings. This process could easily take a month or more. Since hearings are now within three or four days of completion, this potential delay portends to delay the filing of proposed findings as well as the ulti-mate resolution of this proceeding. This delay is particularly egregious when one considers that Suffolk County waited for 40 days following the start of the LILCO strike to file its pro-posed contention.

On balance, the only factor that even arguably weighs in Suffolk County's favor is that no other party will litigate the proposed strike issues. This factor is clearly insufficient to i

l l

. overcome the. lengthy delay that.would result from admission of the. contention; the County's failure to establish good cause; and the preAence of.other means for suffolk County to address its concerns. Accordingly, Suffolk County's proposed conten-tion must be rejected as late filed.

Suffolk. County's Motion Does Not Provide II. . Adequate Reasons for-Reopening the Record

.Suffolk County characterizes its. Motion as merely a motion to submit a late-filed contention. See Motion at 1. In fact, it is an attempt to reopen ~the record on a number of issues that have.already been litigated'in.this proceeding.10/ The contention that LERO members have resigned is simply a narrower version of Contention 39,. the " attrition" issue. See Testimony of Deputy Inspactor Peter F. Cosgrove.et al., ff. Tr. 13,083, at 78-91., Indeed, Inspector Cosgrove has already testified about the effect of the strike:

[B]ut again, if we look at the present sit-uation, LILCO has all of its non-management people out on strike. As -- under my new duties in the Third Precinct, the Brentwood operations center is in my precinct, and as a result I had to get involved in some strike planning, and I had a conversation with Inspector Myers, who was our depart-ment's strike task force commander, who had told me of a conversation that he had with a Mr. Anzaloni, of Local 1049, whereby he

.was' advised that all the Union members had  ;

withdrawn from LERO. l l

10/ While the formal record will not close until this week, the record on the issues which suffolk County now seeks to re-open have been closed for more than a month.

l

- 7 L ,,

)

l To my' understanding, that means twelve hundred of the eighteen hundred members of LERO no' longer exist. So, LERO is being manned now by about six hundred management people, less about. fifty or so who have been laid off. I~think right now LERO has a tremendous attrition' problem, one that I can't imagine how they are going to sur-

mount.

.And.not.'only that, the. argument might be'.made: Well, the strike might be a tem-

. :porary-thing, and they may come back and

'hard feelings may.be soothed over; but these are still utility company employees.

with'an absolute right to strike. They

-could go.~out next year, they could go out the year after. I don't think LILCO can '

ensure that there will never be another strike. .

-Public workers, of course, are en-joined by law from striking. ' Private workers enjoy the right to strike, and they

'can exercise;it, obviously, whenever they seem [ sic] fit. I don't think LILCO can ever ensure that.it-won't happen again.

. Tr.'13,289-90 (Cosgrove); see also Tr. 13,304 (Cosgrove).

Moreover, it will not escape anyone's attention that the ten-sion alleged by Suffolk County.between the. role of LERO membe'rs as emergency workers and their roles as union members or bread-winners looks suspiciously like yet~another species of " role conflict." Finally, issues about the attitudes, incentives, and motivations of LERO workers have been raised repeatedly by Suffolk County in a~ variety of contexts. See, e.g., Tr.

13,184-88 (training issues).

Judged against the NRC standards for reopening a record, Suffolk County's motion must be rejected. The test for reopen-ing the record requires "that (1) the motion be timely, (2) new

, s

? evidence of a~significant safety (or environmental) question

~

exists, and (3) the newJevidence might materially. affect the

. outcome of Ihe proceeding." Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132,.11411(1983); see also Pacific-Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units.1 and 2), ALAB-728, 17 NRC 777, 800 n.I66-(1983).

The timeliness of the County's Motion has a'lready been discussed above;; clearly, the Motion untimely.

The existence of "new evidence" likewise does not militate in the County's favor. The new evidence here is simply the oc-currence of a labor dispute. As we have.shown above, this is n'ot "new" at all; although the particular strike that prompted

~

i the County's. Motion.was recent, the County could have raised the same issue when it'first submitted its contentions over a year ago. Nor is the' possibility of a strike a "significant safety question." If it were, the NRC would have to inquire into the' labor relations of all the people relied on in emer-gency plans all over theJcountry.

'As for whether the" so-called new evidence might materially

=

. affect the outcome, it is inconceivable that any board would rule that a single five-week strike, plus the mere possibility of future strikes, renders an emergency organization permanent-ly ineffective, because there is a test of that effectiveness at least every two years in the FEMA graded exercise. In short, hearing the County's "new evidence" cannot resolve the ~

-w, , - , --..e,,-. - - - - . - - ,--.r ,, . _ , - . , , , , - - , , - - - - - - - - , . - - - . , - - , , . ~ . . ,

~

, 1 3' - ,

' matter:and is unlikely.to materially affect the outcome of this

, proceeding.-

.w

-III. -Conclusion The'_ proposed strike ~ issue is simply another attempt by

- Suffolk County to claim.that people who work for public utility =

companies-are categorically unfit to be emergency workers.

Earlygon, in the " role conflict" contention, the County claimed that a-variety of emergency workers (school teachers, bus driv-

. Jers, etc.) might not-do their jobs because of concern for their families, and that utility ~ employees, alone.of all the.possible emergency workers, would be fearful of their own safety as well. Cf. Contention 25.A to 25.B through 25.F. (Needless to-say, Suffolk County presented no evidence to support this' dis'-

~

tinction.) Later, in Contention'11.on'" Conflict of Interest"

.(which LILCO pointed out is just another species of " role con-flict"), Suffolk County. alleged that utility employees should be disqualified from making health and safety decisions because.

of the way they think. (The County's witnesses testified that utility employees have a subtle "mindset," Tr. 10,919-20, 10,961-62.) ,

Now Suffolk County says that utility employees should be disqualified because they have the power to go on strike.

There is probably an unending variety of ways Suffolk County's lawyers can think up to explain why they believe util-

'ity, employees cannot be trusted as emergency workers. But at a

. some point this Board must tell Suffolk C'ounty that enough is l enough. .Both Congress and the NRC have said that " utility plans" may be used to compensate for the failings of state and local governments. Suffolk County's persistent attempts to urge the contrary should be addressed to Congress.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY A4 b .

ames N. Christman Lee B. Zeugin Hunton & Williams Post Office Box 1535 707 East Main Street Richmond, Virginia 23219 DATED: August 27, 1984 i

f

LILCO, August 27,.1984

~

CERTIFICATE OF-SERVICE

.,^ 000KETED USNRC In the Matter of -

LONG ISLAND LIGHTING COMPANY .

(Shoreham Nuclear . Power Station, Unit @ E 29 - P2:56

' Docket No. 50-322-OL-3 WMT OF SECRt TM

. CCM.TlHG & SEPvd I hereby certify that copies of LILCO'S ANSWER TO Md'fION#

OF SUFFOLK. COUNTY TO ADMIT NEW CONTENTION were served this.date upon the following by first-class mail, postage prepaid or,.as indicated by an' asterisk,.by Federal Express, or,-as indicated by.two_ asterisks,. by hand:

~

James A. Laurenson,** Secretary of the Commission

' Chairman . . . U.S. Nuclear Regulatory

Atomic Safety and Li' censing, Commission Board Washington, D.C. 20555 U.S. . Nuclear. Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal ~ Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commis'sion Washington, D.C. 20555 Dr. Jerry R. Kline**

Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.

Bethesda, MD 20814 Bernard M. Bordenick, Esq.**

David A. Repka, Esq.

Mr. Frederick J. Shon** Edwin J. Reis, Esq.

Atomic Safety and Licensing U. S. Nuclear Regulatory i: Board Commission

3. U.S. Nuclear Regulatory. 7735 Old Georgetown Road l Commiasion (to mailroom)

' East-West Tower, Rm. 430 Bethesda, MD 20814 l

4350 East-West Hwy.

Bethesda, MD 20814 1

l

'^

- l

- 1 Eleanor L.-Frucci,.Esq.** . Stewart M. Glass, Esq *

. Attorney- Regional Counsel Atomic Safety-and. Licensing Federal' Emergency Management Board Panel Agency

'U. S. Nuclear Regulatory- 26 Federal Plaza, Room 1349 Commission- __ .

-New York,' New York' 10178

. East-West Tower,. North Tower

.4350 East-West Highway ' Stephen B..Latham, Esq.*

Bethesda, MD' ~20814 Twomey, Latham & Shea

33. West Second Street-

. Fabian G. Palomino, Esq.* P.O.' Box 398 1Special Counsel to.the Riverhead, New. York 11901 Governor Executive Chamber Ralph Shapiro,'Esq.*

Room 229 'Cammer & Shapiro, P.C.

State Capitol. 9 East 40th Street Albany, New York 12224 'New York, New York 10016 Herbert H. Brown, Esq.** James Dougherty, Esq.

, 1 Lawrence Coe Lanpher, Esq. 3045 Porter Street Christopher McMurray,.Esq. Washington, D.C. 20008 Kirkpatrick, Lockhart,'. Hill Christopher & Phillips Jonathan D. Feinberg, Esq.

.~8th Floor New York State Department of 1900'M.Stree*, N.W. Public Service, Staff Counsel Washington, D.C. 20036 Three Rockefeller' Plaza

, Albany, New York 12223 '

MHB Technical. Associates

'1723 Hamilton Avenue Spence W. Perry, Esq.

Suite K Associate General Counsel San Jose, California 95125 Federal Emergency Management Agency Mr.-Jay Dunkleberger 500 C Street, S.W.

New York State Energy Office Room 840 Agency Building 2 Washington, D.C. 20472 Empire State Plaza

' Albany, New York 12223 Ms. Nora Bredes Executive Coordinator Shoreham opponents' Coalition 195 East-Main Street Smithtown, New York 11787 i

Gerald C. Crotty, Esq. Martin Bradley Ashare, Esq.

Councel to the Governor Suffolk County Attorney Executive Clamber J H. Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 _ Hauppauge, New York 11788

__^ D.

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 27, 1984 I

l 1

9

I L'ILCO, August 27, 1984 UNITED STATES OF AMERICA l I

NUCLEAR REGULATORY-COMMISSION l

i

-Before the Atomic Safety and Licensing Board C0cref0 USVp

~

In the Matter of ) *84 Ag7

). P2:55 LONG-ISLAND l LIGHTING COMPANY ) Docket No. 50-322-OL-3

) eding)

(Shoreham Nuclear Power Station, ) (EmergencyPlankiEffProeg$)$[

~

'"jyjyf4 Unit 1)

)

AFFIDAVIT OF ROBERT X. KELLEHER Robert X. Kelleher, being duly sworn, deposes and says as follows:

1. My name is. Robert X. Kelleher. I am Manager of the Employee Relations Department at the Long' Island Lighting Company.

My business address is-175 East Old Country Road, Hicksville, New York, 11801.

2. I make this affidavit in response to the July 3, 1984 motion'of Suffolk County for admission of a new contention on the effect of the recent strike by labor unions representing LILCO employees on the future vitality of LERO. This affidavit has two primary purposes. The first is to dispel some of the clearly incorrect factual assertions contained in Suffolk County's motion, and second, to demonstrate that much of the factual information presented in Suffolk County's motion was available considerably before the commencement of the LILCO strike on July 10, 1984.

3. On March 6, 1984, LILCO implemented its austerity program. Contrary to Suffolk County's suggestion this program did g97 -, , , ..- . - , . - . , - - - , . , . _

G .

4-

~

not' drive a wedge between labor and management. The union layoffs 1that resulted from the austerity plan were not-the approximately 20% as alleged by Suffolk County, but rather about 8%, allocated as follows:

(a) Clerical union: 245 layoffs outs of a union force of 1574 (or.a 15.6% layoff)

(b) Physical union: 90 layoffs out of a union force of 2665 (or a 3.4% layoff).

In addition, a large number of these union layoffs were from a group of workers classified as " temporary indefinites." Employees in this classification understand they have the highest potential for b'eing laid off. Since these March 6 layoffs, a sizable number of-these union members have been rehired.

4. 'In early. June 1984, representatives of labor.and ma'nage-

,. ment exchanged statements of their respective positions regarding .

the renewal of the union contracts. While the LILCO management position included a proposed 5% wage cut, it also offered a stock plan basically identical to that offered LILCO's management per-sonnel. LILCO's management bargaining position was premised on a desire to treat LILCO's union and non-union personnel as identi-cally as possible. These bargaining positions appeared in local newspapers at various times from early to mid-June.

5. - Other items asserted by Suffolk County to have caused the resentment of LILCO's union employees are inaccurate as a result of the recent strike settlement. Union employees did not suffer a pay cut,- but rather will receive the same wages they had been

4 .

receiving for the prior year. In addition, no union worker has ever:been without his/her' insurance benefits, including health benefits. All benefits were retroactively restored a part of the strike settlement.-

6. Suffolk-. County's assertions regarding the en masse

. resignation of LERO workers 'is simply ~ incorrect. Workers volunteer.for LERO individually by signing a written agreement; workers resign by tendering written notice individually. From July lLto the commencement of the-strike on July 10, 23 union workers submitted written resignations-from LERO; during the j strike, 1 additional' union worker' tendered his written resigna-tion; and following the strike, 2 other workers'have fo.2 ally resigned. In addition, following th'e' strike, 7. union. workers have given~ oral resignation notices to their supervisors, but have yet to-tender written notice. Following the strike, 2 new unior workers have also joined LERO. Thus, the total loss to LERC , out of 1246 union members, was 31.

7. During the strike, business managers for the two LILCO unions did not present single, en masse resignation notices for LERO workers who are also members of their unions. Nor would such a notice have been effective since LERO is a voluntary organiza-tion outside normal LILCO job functions. Indeed, following the acceptance vote on the latest union contracts, the business

. manager for the clerical union signed a statement recognizing that

4 LEROLis a voluntary organization outside the scope of LILCO's n'ormal' business and outside the coverage of the collective bargaining agreement. (Attachment 1). The business manager for the physical union, although he has yet to formally sign such a statement,-has stated that he stands behind it.

~8. Even during the just completed strike, there were clear indications that union workers.will carry out.their voluntary

' obligations, even if they are on strike from their normal jobs.

For example, union members who are members of local voluntary fire departments continued to. serve as voluntary firemen. In many cases, these voluntary functions were performed side-by-side with LILCO management personnel who were also members of those voluntary fire companies.

Robert X. Kelleher COUNTY OF NASSAU )

STATE OF NEW YORK)

Subscribed and sworn to before me this day of , 1984.

NOTARY PUBLIC My Commission Expires on .

~

,- o ATTACHMENT 1 STATEMWF OF W"" J. DALET BUgINEsg MANACEk 14 CAL 1381 ISElf (AFins TS T The thton recognises that the Local Emergency Response Organisation (LER0) is a voluntary organisation and outside the normal scope of the Company's business.

It f* ther recognises that seabers of Local Union 1381. ISElf who have volunteered for assigneasts in LER0 are performing duties and functions not associated with normal operations of the Company.or la job clasaffications severed by~the Collective targaintog Agreement between the Company and the thton.

Accordingly, the tsien has no objectica to any of its membere volunteering for LERO assignmente.

g. L, t  !

l l

l

- . _ .- -.- - _ _ _ _ . . . _ _ - - _ .